feitures? Did they take no thought of the pains of practical outlawry? The stated penalties and forfeitures of the law might be set aside; but was there no pain in disfavor and odium among neighbors, in excommunication from church or societies that might be governed by the prevailing views, in the private liabilities that the law might authorize, or in the unfathomable disgrace, not susceptible of formulation in language, which a known violation of law brings upon the offender. I cannot think so.

over.

"Happily, the day when this immunity is needed seems to be It is difficult for us, who live in a time when there are few, if any, definitions of crime that do not meet with the approval of universal intelligence and conscience, to appreciate these conceptions of our fathers. when we see the shield

held before the briber, the liquor seller, the usury taker, the duelist, and the other violators of accepted law, we are moved to break or cast it aside, unmindful of the splendid purpose that first threw it forward. But whatever its disadvantages now, it is a fixed privilege, until taken down by the same power that extended it. It is not certain, either, that it may not yet serve some useful purpose. The oppression of crowns and principalities is unquestionably over, but the more frightful oppression of selfish, ruthless and merciless majorities may yet constitute one of the chapters of future history. In my opinion, the privilege of silence, against a criminal accusation, guaranteed by the Fifth Amendment, was meant to extend to all the consequences of disclosure."-U. S. v. James, 5 Inter. Com. Rep., 584-588. 60 Fed. Rep. 257.

No appeal could be taken by the government from Judge Grosscup's decision and although the Interstate Commerce Commission declared, in reference to the Counselman and James cases, that:

"It will thus appear that for more than five years, last past, it has been impracticable to obtain testimony on which to enforce the penal provisions of the act, the statute having received a construction which made it impossible to obtain evidence of guilt, though a very few convictions of no great importance have been secured upon testimony casual and accidental."-Ninth Annual Report (1895), p. 9.

it appears that it was not until May 6, 1895, more than a year after it was decided, that a case of similar character could be

9

brought in another jurisdiction. On the date last mentioned, however, Theodore F. Brown, a railway officer, declined, while before the Federal grand jury for the Western District of Pennsylvania, to give testimony which he declared "would tend to accuse and criminate" himself. This refusal being reported to the District Court, a rule requiring him to answer was issued and as he persisted in his refusal he was adjudged guilty of contempt, sentenced to pay a fine and ordered to remain in the custody of the United States marshal until the fine should be paid. A petition for a writ of habeas corpus was denied by the Circuit Court (5 Inter. Com. Rep., 300) and on appeal to the Supreme Court the judgment of the lower court was affirmed, Justices Field and Shiras dissenting. The opinion of the majority of the Supreme Court was prepared by Mr. Justice Brown and includes the following:

"The act of Congress in question securing to witnesses immunity from prosecution is virtually an act of general amnesty, It is entirely true that the statute does not purport, nor is it possible for any statute, to shield the witness from the personal disgrace or opprobrium attaching to the exposure of his crime; but if the proposed testimony is material to the issue on trial, the fact that the testimony may tend to degrade the witness in public estimation does not exempt him from the duty of disclosure. A person who commits a criminal act is bound to contemplate the consequences of exposure to his good name and reputation, and ought not to call upon the courts to protect that which he has himself esteemed to be of such little value. . The design of the constitutional privilege is not to aid the witness in vindicating his character, but to protect him against being compelled to furnish evidence to convict him of a criminal charge. If he secure legal immunity from prosecution, the possible impairment of his good name is a penalty which it is reasonable he should be compelled to pay for the common good. If it be once conceded that the fact that his testimony may tend to bring the witness into disrepute, though not to incriminate him, does not entitle him to the privilege of silence, it necessarily follows that if it also tends to incriminate, but at the same time operates as a pardon for the offense, the fact that the disgrace remains no more entitles him to immunity in this case than in the other. While the constitutional provision in question is justly regarded as one

of the most valuable prerogatives of the citizen, its object is fully accomplished by the statutory immunity, and we are therefore of opinion that the witness was compellable to answer, -Brown v. Walker, 5 Inter. Com. Rep., 381, 390. 161 U. S.,

591.

The decision of the Supreme Court in the Brown case was rendered on March 23, 1896, and was at once heralded as clearing the way for the complete eradication of rebates. The Interstate Commerce Commission in its Tenth Annual Report (1895, p. 27) strongly indicated its belief that thereafter there would be little difficulty in detecting and punishing deviations from the published schedules of rates.

The law of February 11, 1893, which has just been considered, had for its specific object the removal of opportunity to escape giving testimony concerning violations of the Interstate Commerce law by claiming the Constitutional protection against compulsory self-incrimination. The James and Brown cases relate to the production of testimony before grand juries and so did the Counselman case, based upon the earlier statutory provision, which preceded them. While this litigation was in progress an entirely different question arose through litigation which challenged the validity of the statutory means provided for requiring any testimony whatever in proceedings before the Interstate Commerce Commission.

The twelfth section of the Interstate Commerce law authorizes the Commission to issue subpoenas and subpoenas duces tecum and proceeds as follows:

"And in case of disobedience to a subpoena the Commission, or any party to a proceeding before the Commission, may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents under the provisions of this section. And any of the circuit courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any common carrier subject to the provisions of this act, or other person, issue an order requiring such common carrier or other person to appear before said Commission (and produce books and papers if so ordered) and give evidence touching the matter in question;

and any failure to obey such order of the court may be punished by such court as a contempt thereof."

On June 18, 1892, the Commission made an order requiring certain railway companies to appear before it on July 13, following, at Chicago, "to answer an informal complaint, made by unknown persons."2

At the hearing which followed, some of the witnesses, acting upon advice of counsel, refused to produce the books of their companies or to answer certain questions. The Commission then applied to the United States Circuit Court for the Northern District of Illinois, in accordance with the twelfth section, for an order compelling the production of the books and requiring answers to the inquiries propounded. The decision dismissing this application was rendered by the late Judge Walter Q. Gresham and is epitomized in the following quotations :

"The application of an administrative body (and we are now considering such an application) to a judicial tribunal for the exercise of its functions in aid of the execution of non-judicial duties does not make a 'case' or 'controversy' upon which the judicial power can be brought to bear. . Congress cannot make the judicial department the mere adjunct or instrument of either of the other departments of government. Undoubtedly Congress may confer upon a non-judicial body authority to obtain information necessary for legitimate governmental purposes, and make refusal to appear and testify before it touching matters pertinent to any authorized inquiry an offense punishable by the courts, A prosecution or an action for violation of such a statute would clearly be an original suit or controversy between parties within the meaning of the Constitution, and not a mere application, like the present one, for the exercise of the judicial power in aid of a non-judicial body. So much of Section Twelve as authorizes or requires the courts to use their process in aid of inquiries before the Interstate Commerce Commission is unconstitutional and void." Re application of the Interstate Commerce Commission for an order upon W. G. Brimson, et al., 4 Inter. Com. Rep., 317-318.

'This portion of Section Twelve is quoted as it has stood since March 2, 1889. The first sentence read differently in the original enactment, but it is not clear that its meaning was changed by the amendment.

2 Statement of the case by the late Judge Walter Q. Gresham. 4 Inter. Com. Rep., 316.

The Commission appealed to the Supreme Court of the United States and succeeded in obtaining a reversal of the opinion of Judge Gresham.1 This section of the Supreme Court had the assent of but a bare majority, as Justices Brewer and Jackson with Chief Justice Fuller joined in a dissenting opinion and Justice Field did not sit in the case and took no part in its determination. The opinion, by Mr. Justice Harlan, handed down on May 26, 1894, declares that, when the means for compelling testimony provided in the twelfth section are invoked, distinct issues, sufficient to make up a "case or controversy" within the meaning of the Constitution, arise between the United States and the recalcitrant witness. Continuing, it is declared :

"And those issues made in the form prescribed by the Act of Congress are so presented that the judicial power is capable of acting on them. The question so presented is substantially, if not precisely, that which would arise if the witness was proceeded against by indictment under an Act of Congress declaring it to be an offense against the United States for any one to refuse to testify before the Commission."-Interstate Commerce Commission vs. Brimson, 4 Inter. Com. Rep., 555. 154 U. S., 447.

The final decisions in the Brown and Brimson cases were unqualifiedly favorable to the Commission and it was commonly believed that they would put an end to rebates in all their forms. Five pages of the Tenth Annual (1896) Report of the Commission are devoted to an explanation of the decision in the Brown case and its hearing upon the problems of railway regulation. The Commission said, in part:—

"This decision seems to have effectually removed the embarrassments hitherto encountered in obtaining the testimony of unwilling witnesses in penal cases; while under it and the ruling of the Supreme Court in 1894 in the Brimson case little difficulty is now experienced in securing the attendance and testimony of such witnesses in proceedings before the Commission. It is worthy of mention that the power and authority affirmed by these decisions is so fully recognized that in the course of recent investigations by the Commission no attempt has been discovered to conceal the facts pertinent to an inquiry or to prevent the dis1154 U. S., 447. For dissenting opinion see 155 U. S., 3.